Nichols Construction Pty Limited v Elphick (No 4) [2016] NSWSC 1300

Nichols Construction Pty Limited v Elphick (No 4) [2016] NSWSC 1300

A stay of execution of the writ of possession was refused because the applicant and her husband had entered into a deed of settlement including undertakings to the Court, those undertakings were not complied with, the right to possession arose from the judgment entered pursuant to the settlement, not from the mortgage, and the applicant's contentions regarding payment out of the mortgage or fresh funding did not provide a basis for stay.

Parties
Plaintiff/respondent: Nichols Constructions Pty Limited; Defendant/applicant: Vickie Maree Elphick
Jurisdiction
Australia
Judgment Date
14 September 2016
Procedural Posture
Real Property Possession / Application for Stay of Execution of Writ of Possession
Outcome
Application dismissed; costs ordered against applicant
Legal Topics
Possession of Land, Stay of Execution, Mortgage Enforcement, Settlement Deed, Undertakings
Real Property Possession of Land Stay of Execution Mortgage Enforcement Settlement Deed Undertakings

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Parties

Nichols Constructions Pty Limited

Plaintiff/respondent

Vickie Maree Elphick

Defendant/applicant

Procedural Posture

Real Property Possession / Application for Stay of Execution of Writ of Possession

Legal Issues

  1. 1 Whether a stay of execution of the writ of possession should be granted given prior settlement and undertakings
  2. 2 Whether the applicant's proposed payment or refinancing arrangements justify postponing execution

Ratio Decidendi

A stay of execution of the writ of possession was refused because the applicant and her husband had entered into a deed of settlement including undertakings to the Court, those undertakings were not complied with, the right to possession arose from the judgment entered pursuant to the settlement, not from the mortgage, and the applicant's contentions regarding payment out of the mortgage or fresh funding did not provide a basis for stay.

Court Disposition

Application dismissed; costs ordered against applicant

Orders

  • The notice of motion of the applicant filed in court today is dismissed.
  • The applicant must pay the costs of the respondent of the proceedings before me today.